sary, that the rights of the parties in the money produced by the sale of the timber, &c. may be declared; it may also pray that the recognizances entered into by the sureties may be vacated, there being no longer any reason for keeping them in force; an order is made on this petition to the effect prayed, and the costs are taxed in the usual manner, and generally ordered to be paid out of the fund, of which the produce of the timber forms part.

Of course the foregoing proceedings will often vary from peculiar circumstances, but it is impossible to anticipate all cases, and where such circumstances exist, it is not difficult to judge of the necessary

variations.

Sometimes it may become necessary in a cause that the old materials of a mansion-house or other building should be sold, for in some cases it will happen that the old materials may sell more advantageously than the house itself would as standing; in such cases the proceedings are very similar to those for a sale of timber, there being a reference, under a decree or order, to the Master, to inquire as to the propriety of the sale, and the other usual proceedings to carry it into effect.

1)

CHAPTER VIIrd to

qof it b

RECEIVER."

P

What a Receiver is-In what Cases appointed-Application for Appointment of-How appointed-How Appointment appealed against-Receiver's Duties in managing and letting Estate-How Tenants compelled to attorn-How Receiver's Possession and Authority to be enforced-As to|| Receiver bringing Ejectment And distraining How Stranger to Suit to recover Property in Receiver's Possession Allowance to Receiver for Repairs As to bringing in Receiver's Account and paying in his BalanceHow/9 Account brought in and passed-Receiver's Salary-Affi-t davit verifying Account-Paying in Balance-Laying it out in the Funds-How to compel Receiver to bring in his Account-And to pay in his Balance-As to proceeding against his Sureties-As to Receiver paying in Monies not being the ordinary Income from Estates-When Receiver protected against Defaults of others, and when not-Motion for Receiver's Discharge and to vacate Recognizances of Sureties-When Balance due to Receiver may be ordered to be paid to his Sureties.

A RECEIVER in Chancery is a person appointed by the Court to receive the rents, issues, and profits of lands, and the profits and produce of other property, the subject-matter of proceedings in the Court, and to manage and take care of such lands and property during the pendency of the suit or proceedings; and he is appointed by the Court in cases where it is doubtful to what party the property will ultimately belong; or if that be not doubtful, where such party from some incapacity, such as infancy, is incapacitated from receiving the profits of or managing the estate himself. But in either case a Receiver is appointed only where it appears unreasonable that the party or parties to the suit, who would otherwise

perform his duties, should be entrusted with the performance of them; and in all cases, the Court takes care that the person appointed Receiver is a proper person to be entrusted with the performance of the duties of the office. A Receiver is considered as an officer of the Court, and in that capacity has some privileges, and is under some restraints. He may be appointed at various stages of a suit, though not in general before answer.

The cases in which the Court will think it proper to appoint a Receiver will, of course, depend on their own peculiar circumstances, but those of most frequent occurrence are, where infants are entitled to real estate; in suits between partners in trade, where the object is to wind up the concern, but not where the partnership is to be continued; and in suits to guard against the dissipation of the assets by an executor or administrator. The two latter cases are those in which the Court most usually appoints a receiver before answer, and this is done on motion, the Court being satisfied by affidavit that the property is being wasted, or in danger of it.

A Receiver is only appointed where a bill has been filed; and where either party to the suit intends to apply for the appointment of a Receiver, notice of a motion for the purpose is served on the other parties, and counsel are instructed, and the motion is made. Either of the other parties may oppose it, and if on / sufficient grounds will, of course, do so successfully ;·· but if the motion is successful, an order is made referring it to the Master to appoint a proper per! son to be a Receiver, and to allow him a salary for his care and pains, he first giving security, to be aph proved of by the Master, duly to account for and pay what he shall receive; and the order directs the tenants of the lands to attorn and pay their rents in arrear and their growing rents to such Receiver-and that the Receiver shall manage, as well as set and let the estate, with the approbation of the Master,129 and pass his accounts and pay in his balances fromoq

time to time, and directs the investment (in the pub-· lic stocks) of such balances. The party obtaining this order proposes some person of his nomination as receiver, and his agent carries into the Master's office the proposal, in which two persons, proposed as the Receiver's sureties, are also named. This proposal is accompanied by an affidavit showing the amount of the annual income from the real estate, and the amount of the personal estate, and the fitness of the person proposed as Receiver for that office. If the other party object to the Receiver so proposed, he may, in like manner, carry in a counter-proposal of another person for Receiver, but a stranger to the suit is not at liberty to propose a Receiver. The Master, being attended by the parties, decides upon the person to be appointed Receiver, and makes his report approving of him. It is a general rule that a peer will not be appointed a Receiver in consequence of his privilege, neither will the solicitor, or a party in the cause, nor a trustee, be appointed, except, perhaps, with the consent of all parties, but even then no salary will be allowed, and, in general, a proposed Receiver must be a person fit for the office.

When the Master has made his report approving of a Receiver, the Receiver's solicitor takes and files the report the recognizances into which the receiver and his sureties are to enter are then prepared and ingrossed in the Master's office, as also the affidavit of the sureties of their sufficiency, by which they depose that they are worth a sum, which is usually double the annual rental of the estate, and in case there is personalty, double the value or amount thereof (a). The recognizance and affidavit are procured by the agent of the Receiver's solicitor, and sent into the country, and the recognizance is acknowledged and the affidavit sworn before a Master

(a) See form of Affidavit in Appendix, sect. 26.

Extraordinary, and they are then returned to London and left with the Master, who then makes his report appointing the Receiver; which report is also taken and filed by the Receiver's solicitor, and the appointment of the Receiver is then complete. Of course the parties to the suit may, when the Receiver's sureties are proposed, object to them by affidavit, if they are insufficient.

When a receiver has been appointed by the Master, the Court will seldom, on the application of any of the parties who may be dissatisfied with the appointment, interfere with the Master's decision, and it is generally conclusive unless a very strong case of disqualification can be made out; the case of Wynne v. Lord Newborough, 15 Ves. 283, is an instance of such a case having been made out; there the Receiver appointed by the Master was a member of parliament and a practising barrister, and resided at a considerable distance from the estate, and the Court ordered the Master to review his report, which was tantamount to deciding that the person appointed was not a proper person; but in general the Court gives full credit to the Master's decision, and is loth to disturb it. If, however, it be conceived that a sufficiently strong case exists for setting aside the appointment of a receiver, a petition is presented setting forth the objections to the Receiver appointed by the Master, and praying that the Master may review his report; affidavits must be made in support of the petition. The petition is served on the other parties, who may appear and oppose it, having previously, if necessary, filed affidavits in opposition, which affidavits may be replied to by the petitioner. Counsel are then instructed by all parties having an interest in the matter, and the petition comes on and is disposed of in the usual way, an order either being made as prayed, or the petition being dismissed; if the order for the Master to review his report be made, the parties carry in fresh proposals, on which the Master proceeds, and decides as in the first instance.